The Intelligence Officer Narcotics Control Bureau South Zone Unit, Chennai – 600 090 v. Ramlal Gujar

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 24.11.2009CoramThe Honourable Mr. Justice S.TAMILVANANCrl. R.C.No.517 of 2009The Intelligence OfficerNarcotics Control BureauSouth Zone Unit,Chennai – 600 090. .. Petitioner/Complainantvs.Ramlal Gujar .. Respondent/AccusedRevision filed under Section 397 r/w 401 of Criminal ProcedureCode to set aside the order, dated 25.05.2009 passed inCrl.M.P.No.952 of 2009 in Special Case No.11 of 2007 on the file ofthe Principal Special Judge, Special Court under EC & NDPS Act Court,Chennai and direct the respondent to NCB custody for interrogation.For petitioner :Mr.R.Dhanapal RajSpecial Public Prosecutor for NCB Cases.For respondent : Mr.K.Govi Ganesan,Legal Aid CounselO R D E RHeard the Special Public Prosecutor appearing for the petitioneras well as the Legal Aid Counsel appointed for the respondent /accused for interrogation.2. The petition has been filed under Section 397 r/w 401Cr.P.C., seeking an order to set aside the order, dated 25.05.2009made in Crl.M.P.No.952 of 2009 in Spl.C.No.11 of 2007 on the file ofthe Principal Special Judge, Special Court under EC & NDPS Court,Chennai and direct the respondent to NCB custody.3. Learned Special Public Prosecutor appearing for thepetitioner contended that the Zonal Director, NCB, Mumbai, hasintimated vide letter, dated 19.05.2009 that on 13.01.2006, ZonalUnit, Mumbai had searched and seized 5 Kgs of heroin from theresidential premises situated at Flat No.303, B.1, Aman Apartments,Gaurav Sankalp, Mira Road (E) District, Thane and arrested oneSantosh R.Solankio, a resident of Thane District, Mumbai. Duringenquiry, the said accused has given a statement, that was recordedunder Section 67 of NDPS Act that the seized heroin had been procured https://hcservices.ecourts.gov.in/hcservices/ from Ramlal Gujar, a resident of Tagore Mohalla, Bhavani Mandi,Jhalawar District, Rajasthan. He has also given his description andidentified his photograph. Based on the same, Mumbai Zonal Unitissued summon dated 10.02.2006 to the said Ramlal Gujar, therespondent herein. Since the seized contraband is a huge quantity ofheroin, in order to prosecute the case properly, according to thelearned Special Public Prosecutor, the custody of the respondent isrequired for the petitioner.4. It is not in dispute that the respondent herein was producedunder P.T.Warrant and he is now in the Central Prison, Puzhal,Chennai. As there was no representation for the respondent / accused,Mr.K.Govi Ganesan, Advocate is appointed as Legal Aid Counsel by thisCourt to defend the case of the respondent / accused.5. Learned counsel appearing for the respondent raised hisobjection stating that the police / NCB custody is not legallypossible, since the respondent herein was not arrayed as an accusedand arrested in connection with the case referred to by thepetitioner herein. In support of his contention, the learned counselrelied on the decision, The Central Bureau of Investigation vs.Anupam J.Kulkarni, reported in II (1992) CCR 113 (SC). 6. In the decision, The Central Bureau of Investigation vs.Anupam J.Kulkarni, reported in II (1992) CCR 113 (SC), the Hon'bleApex Court has held as follows :"10...However, we must clarify that thislimitation shall not apply to a differentoccurrence in which complicity of the arrestedaccused is disclosed. That would be a differenttransaction and if an accused is in judicialcustody in connection with one case and to enablethe police to complete their investigation of theother case they can required his detention inpolice custody for the purpose of associating himwith the investigation of the other case. In suchsituation he must be formally arrested inconnection with other case and then obtain theorder of the Magistrate for detention in policecustody..."In the aforesaid decision, the Hon'ble Apex Court has categoricallylaid down the ratio that an accused, who is in judicial custodycannot be sent to police custody for further investigation, unlessthere is a formal arrest of the accused in connection with the othercase and obtaining proper order from the concerned Magistrate for thedetention in police custody. https://hcservices.ecourts.gov.in/hcservices/

7. The learned Special Public Prosecutor contended that even ifpolice custody is not possible, in the interest of justice, soughtpermission for the petitioner to interrogate the respondent in thejail premises, Central Prison, Puzhal, Chennai, where he is detained. 8. In order to get police custody of an accused, who is injudicial custody in connection with some other offence, two mandatoryrequirements are needed:1. The accused who is in judicial custody could have beenarrayed as an accused in the connected case also and a formal arrestof the person is also necessary; and2. The Police or NCB authority must obtain the order of theMagistrate for the custody, as per procedure. 9. The learned Special Public Prosecutor relying on the decisionof the Karnataka High Court, R.Mayilvahanam @ Mayil vs. NarcoticControl Bureau, reported in II (2003) CCR 299 contended that there isno prohibition for the Officer under Sections 67 and 42 of NDPS Actto examine the accused persons, who are in the custody of SpecialCourt in some other case in which he was not arrested or implicated.10. As contended by the learned Special Public Prosecutor, anyOfficer referred to in Section 42 of NDP Act, who is authorised underthe Act by the Central Government or a State Government, during thecourse of any enquiry, in connection with the contravention of anyprovision of this Act, call for information from any person for thepurpose of satisfying himself whether there has been anycontravention of the provisions of the Act or any Rule or order madethereunder. It is a settled proposition of law that for interrogationunder Section 67 of NDPS Act, such power is vested with theIntelligence Officer. However, in view of the ratio laid down by theHon'ble Apex Court, for seeking police custody or custody of the NCBOfficers, there must be a formal arrest of the person, while he is injudicial custody, in connection with some other case. If formalarrest of the accused is made in the case in which his custody isrequired, the Magistrate is empowered to grant police custody onreasonable terms, as per law. If the person in judicial custody isnot arrayed as an accused in the case, in which his custody isrequired, there could be no possibility for formal arrest of theperson and seeking custody, by an order of the Magistrate.11. In the instant case, admittedly, the respondent herein wasnot arrayed as an accused and hence, he could not be arrested inconnection with the alleged offence committed by some other accused.In the aforesaid circumstances, custody cannot be granted by theMagistrate, in the light of the decision rendered by the Hon'ble ApexCourt. However, as per Section 67 of the NDPS Act, the petitioner, as https://hcservices.ecourts.gov.in/hcservices/ the intelligence office of NCB is empowered to interrogate therespondent in the Central Prison, Puzhal, Chennai, after intimatingthe same to the Jail authorities. Accordingly, the petitioner ispermitted to interrogate the respondent in the Central Prison,Puzhal, Chennai itself, as per the procedure contemplated under thePrison Manual. 12. This Criminal Revision Petition is disposed of with theabove observation. 13. Mr.K.Govi Ganesan, Legal Aid Counsel is entitled to get aremuneration of Rs.3,000/- (Rupees three thousand only) for havingdefended the respondent, who is in prison.Sd/-Asst.Registrar/True Copy/Sub.Asst.Registrartsvn To1. The Principal Special Judge, Special Court under EC & NDPS Act Court, Chennai.2. The Superintendent, Central Prison, Puzhal, Chennai.3.The Speciall Public Prosecutor for NCB, High Court, Madras.4. The Secretary, Legal Aid Cell, High Court, Madras.+ 1 cc to Mr.R.Dhanapal Raj,Advocate,SR.63429+ 1 cc to Mr.K.Govi Ganesan,Advocate,SR.63815Crl.R.C.No.517 of 2009RSY(CO)EM/25.11.09